Property Tax increases

Recently the Kauai county council was flooded with feedback from unhappy taxpayers who saw their tax bills increase dramatically. Facts are in short supply so I have been researching.

One could write a book on the history, present crisis (if that isn't too dramatic of a term), and philosophies and potential policies going forward. Having scratched the surface with some basic research - using materials not generally available that I have gotten with the cooperation of the county clerk's office - I feel obligated to share this important information that is not in the public forum or I suspect really available anywhere. Here's my plan for the weekend:

• This piece describes the workshop and status quo
• Another piece will detail property tax rates historical trends
• I will separately write my personal opinion about the tax workshop and critique of our tax code

I attended the county tax workshop in council chambers yesterday [Agenda Video MP3 MP4 Captions news article] to learn what I could. It was quite informative, on several levels. Here are a few key takeaways:

• citizen testimony was uniformly outraged - people feel that they livelihood and ability to own a home for their children and grandchildren is endangered
• the county has struggled with this problem for many years - when land prices spike, homeowners are suddenly impacted
• years ago a cap was instituted as an interim measure to stabilize taxes until a better way could be found - and it was the removal of that cap that caused the sharp increases
• when council was debating the tax change, the administration estimations of impact (presented as estimated and actual) were largely accurate - no surprises at all - which means they were not looking at the right things
• the county failed to sufficiently notify and educate citizens - even though notices were mailed, printed in the paper, and so forth - the county has no good means of communicating messages
• Kauai county taxes on average are a little higher than neighbor islands but not way out of line
• Accusations were made that residential taxes were increased to hold down the hotel tax rate

County council members uniformly expressed surprise that taxes had gone up so much. There is no suggestion that any mistakes were made preparing the bills so what exactly happened?

The problem in a nutshell

All the hubbub started with Ordinance 953 (as Bill 2495 introduced July 17, 2013 by Tim Bynum) which became law August 28. Since the county fiscal years begins in July, it did not take effect until tax bills appeared last month.

In a nutshell, back in 1991 the council put a 6% cap on homeowner property tax amounts to stem the problem people were facing as land prices on the island were taking off. In 2006(*) the cap was changed to 2% and then around 2012 to be based on consumer price index. Details aside, here's the point: while real estate has inflated considerably since 1991 (easily doubled if not much more) everyone's taxes just went up a few percent every year. At this point it should be obvious that when the council removed the cap - after in some cases over twenty years of holding taxes artificially low - even with various provisions that attempted to "give back" to compensate, some taxpayers took a serious hit.

Starting over twenty years ago, even though property values went up, and tax rates went up, your taxes would only rise a few percent - enough that most people would just shrug and pay, perhaps remembering it was a little higher than last year but no big increases. Suddenly with the cap gone all those years of property valuation growth suddenly catch up.

I think a big factor that isn't getting enough attention (even though many people speaking at the workshop mentioned it) is the change to value mixed use property at the highest rate. If you rented out a room one night that now completely voids your homestead classification and makes the property vacation rental tax rate for the whole year. The vacation rental rate is nearly triple homestead - only hotel/resort is higher. 

But that isn't all and notably for homestead (roughly principal residence rate) classification, the tax rate is no lower than it was all those years - in 1989, when there was just residential rate, the tax was $5.71 per thousand compared to $3.05 now. That taxes are higher now shows how much property values have risen as well as that the compensations the council intends to offset are not helping enough.

The details

First off, I freely admit that I am digging into this but there is a lot I have still to learn and welcome construction feedback to get this right. Some basics - property is zoned residential, commercial, etc. and taxed by similar classifications; however, taxes are figured by actual use, not according to the map. Classifications [defined at tax code Sec. 5A-6.4 Real Property Tax Rate Classifications] are fairly clear:  Residential; Vacation rental; Commercial; Industrial; Agricultural; Conservation; Hotel and resort; and Homestead. Think of Homestead as a lower rate for owner-occupied residential, and other residential as second homes, rental properties, and vacant land in residential zoned areas.

Even focusing on just residential (Homestead, Residential, and Vacation Rental) property tax code are fabulously complex - and I believe this is a big part of the problem. The best way to understand what happened, as a first step to figuring out what to do now, would be to write a simple explanation of how taxes were computed this year compared to last year. However, there are so many rules and so many changes made over the years that it would take a multi-hour seminar to cover everything - yesterday we got part of that seminar covering a sketch of the full details but certainly not all the details.

(*) Dates tax code changes take effect are approximate: in researching this I soon gave up exactly following the tax code because it changes almost every year (see below) and it was often unclear when a code change would be effective given the fiscal year starts in July and that the finance department must require time to implement changes to the system. Thus, the timing of the tax code change, what fiscal year it begins to have impact, and when taxpayers actually see the result may vary slightly. Fortunately, the big picture is clear without knowing this level of detail.

Going back to basics, I thought I would look up the tax code and just figure it out myself. I had no idea what a difficult task that was. To get an idea of the effort involved take a look at how many times the real property tax law here has been changed. While not every one of these necessarily impacts residential taxes, many do. I count twenty times in thirty two years, fourteen in the last fourteen years!

Ord. No. 394, July 1, 1981; Ord. No. 420, January 1, 1983; Ord. No. 561, December 27, 1989; Ord. No. 572, July 16, 1990; Ord. No. 584, March 12, 1991; Ord. No. 603, April 20, 1992; Ord. No. 779, December 10, 2001; Ord. No. 784, May 13, 2002; Ord. No. 789, August 26, 2002; Ord. No. 799, December 23, 2002; Ord. No. 805, September 19, 2003; Ord. No. 819, October 26, 2004; Ord. No. 820, November 8, 2004; Ord. No. 834, October 7, 2005; Ord. No. 836, October 7, 2005; Ord. No. 915, November 16, 2011; Ord. No. 920, December 14, 2011; Ord. No. 932, September 5, 2012; Ord. No. 940, April 24, 2013; Ord. No. 953, August 28, 2013

Taxpayers need to confront a lot of complexity in the system as well. Homeowners have a number of options for tax relief but only if the file the proper paperwork, and some filings must be renewed every year. The system is complex and I suspect many people pay more than they have to because they either forget or do not know or fully understand the system. Not knowing about of the ways to reduce your taxes will cost you significantly.

• Home use exemption
• Low income exemption (annual)
• Disability (for veterans, Hansen's disease, and other various types)
• Safe Room exemption
• Kuleana
• Home Preservation (annual)
• Ag Dedication
• Hawaiian Homelands
• Long-term Affordable Rent (annual)
• Recording a 15 year lease gives the lessee owner equivalent rights
• Deeding a percentage interest to family member

I'm guessing that virtually nobody knows about all these ways of lowering residential property taxes, or even those who researched taxes when they bought have managed to remember it all and keep up with not only filing the forms but also learning about the frequent changes in the tax code itself. Is it any surprise that people fail to get this exactly right? Should that cost them a heavy toll in taxes?

And now to get to the FY2014 tax change itself. Many years ago (I am still researching the origins) when Kauai real estate started to skyrocket as tourism, rapid development, and wealthy second home owners started arriving - property taxes proportionately jumped up in response. To address the outcry from homeowners the council implemented at first a 6% cap so that no matter how much assessed values and tax rates rose, homeowner's bills would only go up at most 6% from the previous year.

In 2005 Ordinance 826 (Bill 2127) dropped the cap to 2% in response to an accelerating raising market. As the preamble says, "The purpose of this Bill is to provide immediate property tax relief to qualified homeowners with a home exemption under section 5A-11.4 by lowering the Permanent Home Use PHU exemption from its present 6% to 2% commencing July 1, 2005. The County recognizes that by the close of 2004, average median home sale prices on Kauai had risen to $495,000. The Honolulu Advertiser reported that, for February 2005, the median home sale price on Kauai was $627,000 - a 48% jump from February 2004 and the highest ever for Kauai." That even a 6% cap needed lowering indicates a remarkable further intervention in the system.

In 2013, Ordinance 940 (Bill 2467, Draft 2) added Sec. 5A-11.4(e) Low Income Homeowner Credit as yet another attempt at tax relief in addition to the cap, then later in the same year Ordinance 953 (Bill 2495, Draft 3) enacted several important changes in an attempt to improve things that seem to have precipitated all the trouble.

• Sec. 5A-6.4 on tax rate classifications adds this: "If a property has multiple actual uses, it shall be classified as the use with the highest tax rate." This means if you have a small room occasionally used as a vacation rental then the entire property now pays the vacation rental tax rate (which is the highest rate except for hotel/resort).
• Sec. 5A-9.3 Permanent Home Use Tax Limit is removed completely. 
• Sec. 5A-9.4 Certain Lands Dedicated For Residential Use is removed completely 
• Sec. 5A-11.4. (a) Principal home exemption was increased (in hopes of offsetting the changes somewhat) 
• under 60: from $48,000 to $160,000 
• 60 to 70: from $96,000 to $180,000 
• over 70: from $120,000 to $200,000 

This still does not give you a full story of how residential property tax works here. Up until 2012 land and build rates were separate. The Apartment classification changed last year into the Vacation Rental rate apparently (I haven't chased that down yet). The precise rules for qualifying for various rates and exemptions vary from year to year.

For the county's summary of changes for 2014 see REAL PROPERTY TAX CHANGES FOR 2014.

Postscript: How to find county ordinances

You can see a fairly recent version of county code here with all the latest changes made. The very latest ordinances of the past few months are not included but there will be a warning triangle indicating change has been made recently, and these very latest ordinances are here.
Individual ordinances of the past few years are at http://qcode.us/codes/kauaicounty/revisions/930.pdf (replace "930" at the end with the number you want, so long as it isn't smaller than 930).
Finally, there is a listing of all ordinances since number one here.

Kauaʻi County annual report

Kauaʻi county publishes an annual report summarizing the activities of each department for the past fiscal year. The 2012-2013 report is just out and can be found here.

The county fiscal year is from July to June, so that means it took nearly 13 months to get the report out this year. I wrote to the mayor's office asking why the delay and with persistence heard this year they took extra time without an explanation of why. Normally the report is out by late fall they said.

A few highlights from reading a few sections:

• County Auditor
• The review of county take-home car policy (notably including the gas the county pays for that allegedly went to personal use) is still in progress.
• County Auditor returned 36% of the budget unused
• County Attorney
• almost $500,000 over budget (apparently unplanned high cost of litigation)
• the county is embroiled in lawsuits against it: well over 100 cases were pending at the start of the fiscal year (two years ago, July 1, 2012) and just over 100 were filed during FY2012-2013; since only 50-some cases closed that means the county had nearly 200 cases pending as of June 30, 2013.
• Mayor
• a collection of reports from a number of boards and projects under the mayor's office

There are a total of 19 department sections in the county annual report. I will update with highlights from a few more at a time.

Fiscal Year 2012 - 2013 Annual Report by Department

Annual Report Cover

Message from the Mayor
Table of Contents
Section I: Office of the County Attorney
Section II: Civil Defense Agency
Section III: Department of Personnel Services
Section IV: Office of Economic Development
Section V: Agency on Elderly Affairs
Section VI: Department of Finance
Section VII: Kauai Fire Department
Section VIII: Kauai County Housing Agency
Section IX: Department of Liquor Control
Section X: Office of the Mayor
Section XI: Department of Parks & Recreation
Section XII: Planning Department
Section XIII: Kauai Police Department
Section XIV: Office of the Prosecuting Attorney
Section XV: Department of Public Works
Section XVI: Transportation Agency
Section XVII: Department of Water
Section XVIII: Office of the County Clerk
Section XIX: Office of the County Auditor

Kalaheo water details

There has been interest in details I have been writing up here from folks in the community, so here are some more. I hope it is of interest.

Most of today water department trucks were gathered at the entrance to Kakela Makai around a hole in the road working on something.

Gauging the water level in the tank

Today I learned from a citizen in the Kakela Makai area how you can tell the level of water in the supply tanks, i.e. how close the community is to running out of water.

Along Puu Road on the makai side of the Kukuiolono golf course there is a big green water tank. The GPS location is approximately (21.912192,-159.523775) or see Google map.

Along the right side of the tank is a white vertical bar that has an indicator that goes up and down: see the yellow arrow in photo at left. This is attached to a pulley at the top, over, and down into the tank connected to a float to measure the water level. The further up this indicator goes the lower down the float is and vice versa. This shot (June 2, 3pm) shows the indicator about 1/4 from the top (dashed yellow line) which means the water lever is roughly 1/4 from empty (dashed blue line below). As the indicator moves lower it means there is more water in the tank (and if you look closely at the Google Street view at the link above, the indicator is down a few feet from ground level) showing normal very full supply.

Kalaheo's wells and water tanks

The two wells that have both failed causing this water shortage are mauka side uphill from the highway, approximately at (21.938187,-159.525099) according to the map provided at the water department meeting on Saturday. There is a water tank near the wells and another tank (100,000 gallon) further uphill on Puuwai Road.

On the other side of the highway to the south in addition to the Puu Road tank shown above, there is a (250,000 gallon) tank up near the northeast edge of the Kukuiolono golf course, roughly at (21.9180151,-159.5261859).

What about all the other water?

At the water department meeting one good question was about potentially using Alexander Reservoir (21.9570011,-159.5243735) which is just uphill from the highest mauka tank and presumably contains lots of water. Chief Engineer Saiki responded that the water treatment facility for the reservoir was damaged in Iniki (major hurricane) and have been abandoned. Restoring the treatment facility probably doesn't make sense as an interim measure since it would take considerable time and expense, probably repairing the wells is cheaper and faster. Additionally, since this isn't a department of water reservoir (it seems to be private) it isn't even part of the system as I understand it. This explanation makes sense to me. 

Another question was about the nearby Kauai Coffee fields having water while the adjoining neighborhoods in Kalaheo don't. The coffee fields are supplied by private agricultural water system not part of the department of water and since it is non-potable water it isn't clear how they could even usefully share even if they wanted to. That said, so see all that water running in ditches when you have none in the tap is hard to ignore.

County council race update

With the filing deadline a few days away here is an updated list of candidates (as of 30 May) vying to get on the primary ballot.

The council's latest appointment Mason K. Chock, Sr. has now filed so all incumbents should be on the ballot ... with the surprising exception of council chair J. Furfaro who has not yet filed nomination papers.

Question mark (?) indicates candidates who have not completed filing. Candidates file and receive papers that they must returned with voter signatures to get on the ballot. June 3 is the deadline to file nomination. Next step to getting on the ballot is for the nomination papers to be validated by election officials to ensure they have the requisite number of voter signatures.

New candidates since last time I reviewed the field are in italics.

1. ? Dominic C. Acain - Kekaha
2. ? William U. Asing - Lihue
3. Arthur Brun - Kekaha, works for Syngenta (biotechnology corporation)
4. Tim L. Bynum (i) - Kapaʻa, recently won settlement to lawsuit against the county in court
5. Mason K. Chock, Sr. (i) - Kapaʻa
6. Felicia E. Cowden - Kilauea, prominent local radio personality
7. ? Vince E. Flores - Lawai
8. ? J. Furfaro (i) - Princeville, current chair of the council
9. Joanne Georgi - Eleele, ran for state senate unsuccessfully in 2010
10. ? Eva Hoopii - Kapaʻa
11. Gary L. Hooser (i) - Kapaʻa
12. Ronald J. Horoshko - Kalaheo, operates the golf course cafe Birdie's
13. Joseph H. Kaauwai, Jr. - Anahola
14. Ross K. Kagawa (i) - Lihue
15. Ernest L. Kanekoa, Jr. - Kalaheo, police commission member
16. Arryl J. Kaneshiro - Lihue
17. ? Sandra I. Klutke - Kapaʻa
18. Kipukai L.P. Kuaalii - Anahola
19. Tiana K. Laranio - Kapaʻa
20. Arnold W. F. Leong - Hanapepe
21. ? Toi Pualaa Norwood - Lihue
22. Darryl D. Perry - Lihue, chief of police
23. Melvin F. Rapozo (i) - Kapaʻa
24. JoAnn A. Yukimura (i) - Lihue

Kalaheo water supply update

The recent 48 hour water service failure has provided a window in the operation of the Kauai Department of Water in providing clean, safe drinking water - a service too easy to take for granted. Since yesterday afternoon water service has been working for me here so that's real progress.

This part of Kalaheo gets water from who wells near the golf course area at the top of the hill makai of the highway.

Four months ago on January 29 the main well failed and the department responded by requesting a contractor to perform necessary repairs[1]. The emergency procurement request states specifically that the contractor, Oasis Water System, commits to mobilize their rig "same day" the department orders the job. The next mention of this emergency request I could find was two months later[2] contract #581 was awarded as requested (the date of Notice to Proceed is not listed but presumably is before April 24). So repair on the primary well should have been underway at least a month ago.

Then the backup well failed last weekend. "The Department was executing a contract for the repairs to Well no. 1, but before the contractor got started, Well no. 2 was damaged on Sunday, May 25, 2014. "[3]

The latest timeline: "DOW estimates 4-6 weeks to fully restore Kalaheo well damage; Temporary measures should improve water service by early next week"[4] It's unclear if this means repairing the backup well or also the primary well. Temporary pipe was put in across the highway last night which I suppose allows water from the mauka reservoir to be shared with the rest of Kalaheo.

Open questions include:

• Why did it take one to two months to approve an emergency repair request?
• Did the contract indeed start work "same day" and what is the status of that work?

[1] Water board minutes of February 14, 2014: page 51-53.
[2] Water board minutes of April 24, 2014: page 158.
[3] Water department reply to comment on Kauai DOW facebook page.
[4] Water department announcement on Kauai DOW facebook post.

Currently the mainland is facing severe drought conditions in much of the southwest and south central regions. This is a much bigger problem than fixing a couple of broken wells. In the map below the black, red, and orange areas represent exceptional, extreme, and severe drought conditions, respectively. The past two days have demonstrated to me personally that running low on water very quickly impacts daily life. What we can do is raise awareness and act to address these challenges. What we mustn't do is ignore the situation and continue taking our water supply for granted.

Kauaʻi County Council race begins

While politics may be of little interest to many readers, the outcome of this process very much effects the future of this island. 

In the USA I think we tend to take elections for granted, even after the 2000 election raised some very serious issues with the process. Kauaʻi is small enough that I wanted to look into the process behind the election itself.

Candidates are still filing for the primary election ballot for county council seats but here is an early look at the official uncertified preliminary status as of 9 May. The follow lists candidates who have applied for nomination papers to be returned with 15 (thatʻs all) signatures of voters to get on the ballot along with a filing fee. Until all papers are in and signatures checked we won't know the final list but the following is a reasonable approximation of who will be in the running for seven seats.

According to the candidate's manual, each candidate chooses whether or not to comply with campaign spending limits and if so a viable candidate can receive funding from the state (taken from state income tax revenue) for the campaign. The spending limit is $1.40 per registered voter (from the last election) or about $56,000. Candidates must independently collect at least $3,000 to be considered eligible for funding.

Candidates are listed alphabetically with their city of residence; incumbents marked "(i)". Link to best web link I found relevant to candidacy:

1. Arthur Brun - Kekaha, works for Syngenta (biotechnology corporation)
2. Tim L. Bynum (i) - Kapaʻa, recently won settlement to lawsuit against the county in court
3. Felicia E. Cowden - Kilauea, prominent local radio personality
4. J. Furfaro (i) - Princeville, current chair of the council
5. Joanne Georgi - Eleele, ran for state senate unsuccessfully in 2010
6. Eva Hoopii - Kapaʻa
7. Gary L. Hooser (i) - Kapaʻa
8. Ronald J. Horoshko - Kalaheo
9. Joseph H. Kaauwai, Jr. - Anahola
10. Ross K. Kagawa (i) - Lihue
11. Ernest L. Kanekoa, Jr. - Kalaheo, police commission member
12. Arryl J. Kaneshiro - Lihue
13. Kipukai L.P. Kuaalii - Anahola
14. Darryl D. Perry - Lihue, chief of police
15. Melvin F. Rapozo (i) - Kapaʻa
16. JoAnn A. Yukimura (i) - Lihue

The only incumbent not listed is Mason K. Chock, Sr., recently appointed to fill an open seat.

While I don't want to overestimate the power of the internet, it's notable that only incumbents (and not all of them) have campaign web sites. Of those most are fairly barebones. A couple of new candidates got short interviews in the local paper which I did link to. That said, signs in people's yards may be more powerful that web sites, and I have seen several signs for candidates that don't have web sites, or at least sites I could find via searching.

Election year

This is an election year and in the past few weeks signs have been popping up along the road or in front of homes and businesses in support of candidates. Less than two months remain to register to vote.

• Primary election is August 9, 2014
• General election is November 4, 2014

County mayor, council, and prosecuting attorney will be on the ballot in addition to governor and state representative. The county council members are "at-large" meaning each serves the entire island rather than having regional seats. The top 14 vote getters in the primary vie for the 7 seats going to the top 7 vote getters in the general election.

By far the strongest early showing on the streets is our incumbent mayor Bernard Carvalho: not just signs but he has people waving his signs by the highway. Last election he won easily and I have heard folks here opine that he doesn't have any serious competition this year. It's too early to tell as there are a few weeks left for candidate filings so the process has just begun.

So many people I have asked about local government shake their heads and complain. There certainly have been reasons to worry, but one easy improvement that is very doable is better voter turnout. In 2012 general election voter turnout was 62.9% (25,617 of 40,738 registered voters).

For politics, I realize this is a rather bland opinion-free posting, but I am just beginning to learn about all this so will wait until I actually have some insight before sharing my critical thoughts on candidates.

Official county elections information is available at kauai.gov/elections or see state elections where results will be posted.

Kauaʻi Bill 2491 vetoed

After taking the maximum time allowed the mayor vetoed Kauaʻi Bill 2491 (PDF link) yesterday in a move that surprised many, releasing a 76 page report detailing the decision (PDF link) containing the mayorʻs statement for release, the transmittal from the council to the mayor upon passage of the bill, and the until now secret legal opinion on the bill from the county attorneyʻs office.

“I have always said I agree with the intent of this bill to provide for pesticide use disclosure, create meaningful buffer zones and conduct a study on the health and environmental issues relating to pesticide use on Kaua‘i,” stated the Mayor. “However, I believe strongly that this bill is legally flawed. That being the case, I had no choice but to veto.”

I am hardly qualified to assess the legal opinion but regardless of those details what I would very much like to understand is how the process broke down here. Specifically, since the bill was introduced four months ago (June 26) and from the beginning was clearly a major public issue for the county, why didn't the county attorney, the mayor, and the council work together to draft something that met the technical legal requirements of the intended goals which the mayor says he supports?

The council worked with attorneys as well as the mayor throughout the process so the possibilities seem to be:

1. The council was never advised how they might fix the supposed legal flaws.
2. The council was advised but refused to accept suggested changes for legal purposes.
3. It is impossible to achieve the goals of Bill 2491 at the county level.

The county attorney opinion consists of four sections - an Introduction, Legal Issues, Specific Challenges, and a short Conclusion. Why is there no Suggested Amendments section? Just as one example, there is an issue related to the bill assigning enforcement responsibility to the Office of Economic Development: surely the opinion could have recommended to the council a more suitable department to handle implementation.

The legal opinion released is stamped as confidential: what are the consequences of publicizing the opinion?

1. Does this effectively subvert the council overriding the veto because now the county is in a much compromised position should it enact the bill, having disclosed all the potential flaws and anticipated legal attacks it fears?
2. Did the mayor unilaterally leak the confidential document to support his veto, or consult with if not get approval of the county attorney and/or county council (who had already decided against disclosure)?

The mayor concludes: “I would like to state that, despite this veto, I absolutely believe that the spirit of 2491 will be implemented on Kauai in accordance with applicable federal, state and county laws and regulations,” he wrote to the council. “It would be my preference to achieve the goal through cooperation and understanding, instead of through adversarial legal action.” Isn't a veto adversarial?

See Kauaʻi Eclectic blog coverage of the veto and the response for more details.

Given the mayor's statement of agreement with intent I have to conclude that either county government is either incompetent to write legislation, so encumbered by state and federal law as to be completely disempowered, or both. Kauaʻi seems to have a record for bungling popularly supported initiatives and getting into legal hot water, possibly causing more damage than good. Another example would be management of vacation rentals (Transient Vacation Rental) as documented in the Abuse Chronicles also at Kauaʻi Eclectic which I believe has been through three iterations becoming increasingly dysfunctional.

I believe we have some good people on the council so is the problem that the system itself is broken, too many layers, too risk averse, with too much complexity?

Kauai Bill 2491 passes

The bill passed in the middle of the night, earlier today after a marathon special council session. The controversy will undoubtedly continue, there may be lawsuits, enforcement issues, and so forth, but at least we should get some information disclosure and perhaps that will enable some clarity and transparency that seems much needed.

The video is quite instructive (I watched the last 45 minutes, see link below) as the long night meeting in the end brought out the very human side of the process. Following 17:55 there is a distinct turning point when the patience of many in the room suddenly runs thin, order is firmly but gently restored by the chair, and from that point there is a momentum to wrap up with thank-you's and move to a vote.

First off what's striking is how gut-wrenchingly emotional this entire process is. I have to say that objectively looking at this bill it requires what appears to be quite routine county oversight of five businesses yet the tone of the room is as if World War Three is hanging in the balance.

Overhanging the whole thing is a county attorney opinion about the bill that the council has chosen not to make public. As a result, there are references in the proceedings to unspecified legal concerns that they are unable to discuss publicly. It's difficult to have useful public debate when there are important concerns held in secret as part of the process. Why these legal issues were not mitigated through the amendment process I have no idea.

Another unfortunate circumstance surrounding the bill is that in theory the state of Hawaii should already have responsibility for this matter but in fact has been doing so little for so many years that the county was forced to take this on itself if anything was to be done at all. Yet for the county to act within the purview of state responsibility appears to require a Memorandum of Understanding. Whether the bill or the MOU comes first seems to be a bit of a chicken-and-egg problem but since the mayor has already started dialog with the state - and was urging delay as those discussions seem to take considerable time. With this bill in the works now for many months I would think a MOU could have been forged long ago, or perhaps an MOU of intent to produce an MOU. Again, this is all part of an opaque process so I won't speculate beyond remarking how clear-as-mud the whole thing is.

With the bill now destined to become county law (the mayor has pledged not to veto it) no doubt the county, the state, and of course the affected big ag companies here will doubtless be having many strategy meetings. By no means does passage mean the Bill 2491 story is over!

Coincidentally in Washington DC it seems that also after a lot of emotion the Congress finally agreed to fund the government and restore federal services that have been shutdown over their wrangling. This may be a week for reconciliation.

More details:

• Special Council Meeting video can be found here: click the County Council section look for Special Council Meeting, 10/15/13, 18h 37m; click on Video link there.
• Joan Conrow
• Andy Parx
• The Garden Island

Toward a Kaua'i Bill of Rights

Thursday evening Kaua'i Rising held an informational event featuring two lawyers from the CELDF talking about environmental challenges to local communities and their strategies and efforts to support people standing up for their rights. The three hour meeting was quite interesting and felt like about half that much time and was embedded in a cultural context with music and Hawaiian style opening and closings.

Kai Huschke and Ben Price from CELDF spoke at length as lawyers who has worked with numerous communities fighting large corporate interests they do not want exploiting their land - energy extractions such as tracking, strip mining, big agriculture.

They also described how the legal and political systems of this country are stacked heavily against local control. I knew well that in the hierarchy of our legal system federal law is supreme, then state, and finally local law, but the obvious effect of this structure had not in so many words occurred to me: local control is systemically quashed. On top of that there is Dillon's Rule which states that municipal law can only legislate matters expressly granted to it by federal or state law, or enshrined in the charter of the municipality. (For more than the preceding simplified sketch of the legal terrain, see the CELDF site resources with in-depth and authoritative legal information.)

Prospects may sound bleak for a grass roots reversal and in some ways that is so. On Kaua'i the hot button topic is GMO because the former cane sugar fields have been turned over to GMO seed production and experimentation, exploiting the year round growing conditions and plentiful water here. For more info on GMO issues see for example hawaiiseed.org.

John Dumas played a beautiful opening set while people assembled and then closed the meeting with a heartfelt rendition of Amazing Grace [download].

The political and legal strategy is complex and I won't attempt to describe it here much less evaluate options. One key point to understand about this meeting is that where it was crystal clear where the CELDF comes down on these issues, they were equally clear in their role in coming here being to advise options for the community to chose action. In a nutshell, there are three options to choose from:

1. Do nothing: you get the status quo and all prospects for escalation by corporate interests.
2. Regulate within the existing legal framework: you may get some concessions but not stop anything, and by doing so legitimize the activity and thereby contribute to its expansion.
3. Fight back: exactly what forms this takes and what the likelihood for victory may be remains to be seen. The glimmer of hope on the legal front is an argument built on the principles of human rights which government is responsible to protect and serve, not subjugate. Ultimately, it's a moral responsibility as well for the people to protect the land and nature.

In closing I would like to capture some excepts from the meeting out of context that I think best convey the spirit of it.

• Big corporations become The Machine of Endless Production of More
• One community resisting corporate exploitation was labeled by law enforcement as domestic terrorists, so they had T-shirts made up and wore them proudly.
• The legal strategy CELDF helps crafts becomes an organizing strategy.
• US law is based on English law which developed to support the process of colonization, so it encourages expansion of empire, wiping out local customs and practices to be replaced with by the new masters of newly acquired territories.
• The US constitution is largely a collection of commerce and property law. (The Bill of Rights is separate.)
• The CELDF used to carefully review corporate applications for extractive operations and point out all the errors and flaws to get them rejected. However, they soon stopped doing this because the corporations would just make exactly those corrections and refile. In effect, the CELDF realized they were providing corporations free legal services and legitimizing their operations.
• Responding to a comment wishing more people were at the event (I'd say it was less than 100), a wonderful auntie stood up and said, "The people who need to be here are here."
• Ben Price related a wonderful quote from working with an indigenous community. Upon learning about Dillon's Rule that municipalities are completely subject to federal and state control, an older Native American in attendance said, "So municipalities are the white man's reservation ... only he doesn't even know he's on a reservation, too."

Action for Kaua'i Rising

Today I had planned to go to the beach, up until 10:30pm last night that is when a friend here forwarded me email about a Kaua'i Rising action to petition the county council at a public meeting this morning to adopt a Kaua'i Food Bill of Rights. Clearly this was the place to go. And then, on the way there, who should I see at a Kapa'a bus stop but my friend (who does not have a car) it turned out that we went to the event together and he kindly introduced me around.

On Kaua'i because it is small and isolated and so many people come here for such different reasons it seems that modern challenges with food, energy, economics, and so forth come to a head quickly and in more extreme ways than on the mainland. This is, of course, also an enormous opportunity.

Gathering at 8am ahead of a county council hearing where a large number of signed petitions were to be presented I met a lot of the people attending the action. The diverse gathering was about half what would be characterized as counter-culture people, a number of retired persons, and a few locals. I met numerous good people who quickly made me feel welcome and had some good conversations about these difficult issues. Some council members came out and met with people individually ahead of the formalities, and even the chief of police made an appearance.

The action began with music - drums and singing; and included petition collecting, signs like "GMO Free Hawaii!", and a lot of impromptu talk story. At around 9am a contingent went in to present the petitions and address the council while the signs and music continued outside.

I met a young lady who left her career in marketing to come here and run a small business and now describes herself as an orchestrator. I met a massage therapist who told me that Kaua'i is a remnant of the lost continent of Lemuria. I met the web site administrator for the Kaua'i Rising web site.

Afterwards, a lady who had gone in described the proceedings. She spoke softly and with such a loving tone about the disparity between the very human energy of this action and the petition and the people behind it against the calculated complexity of county council procedures and rules. "They spent twenty minutes deciding how we could use the eighteen minutes we were allotted to speak." It was a striking example of modern government inefficiency and how they become entangled in their own rules. By contrast, she offered that what was needed was more "speaking from the heart" which was exactly what all those people were there doing in their own way, myself included.

Next steps: there is a meeting tomorrow (6:30pm, May 2, in Kapa'a at The Children of the Land) to present a draft of the Kaua'i Food Bill of Rights for public input that I intend to attend to learn more about what specifically it entails. I will postpone touching on the issue and this strategy here, focusing instead on the gathering and that experience.

Update: read the Kaua'i Rising post following today's event here with details of Thursday meeting.

Update: Garden Island story on this event is here. I happened to be standing behind the "PETITIONS DROP OFF" sign in the 3rd photo labeled "collect FOOD BILL.jpg" and unrecognizable.

Update: Interesting critique of the action - I did not have a chance to go inside and observe the actual meeting as the room filled up - from Joan Conrow, my favorite local investigative blogger.